Excerpt:.....act, 1890 and chapter 1 rule 118 and chapter 3 rules 32 and 33 of railways goods tariff, 1950 - coal consignment booked and railway receipt endorsed in favour of plaintiff - terms of booking showed that consignment was booked at owner's risk - pilferage in coal due to negligence of railway - consignee demanded delivery of consignment after re-weighing - held, consignee can claim damages after accepting delivery but can not claim delivery after re-weighing. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of..........of the goods station should open the boxes and examine the consignments and should give him an open delivery. the railway company refused to do so and the plaintiff in his turn refused to take delivery of the goods. in this case the consignment was carried at the railway risk. this court held that the railway was not bound to open the consignment and examine it before delivery and it was not a wrongful act on the part of the bail-way company to refuse to give delivery in the way required by the plaintiff and they were not liable to him for any damages. this case is distinguishable on facts as the consignment was actually re-weighed at the destination and what the plaintiff insisted was for open delivery to which he was held not entitled.the principle laid down in this case has been.....

Judgment:

K.N. Seth, J.

1. A wagon of coal weighing 20 tonnes was booked from Kusanda. The Railway receipt was in favour of Bengal Coal Depot Holders Association, Meerut, and it was endorsed in favour of the plaintiff. The plaintiffalleged that when its Manager and Karta Radhey Shiam went to take delivery of the coal he found the side doors of the wagon open and that about one-fourth of the coal was missing. He demanded delivery of the consignment after weighment which was refused by the Railway authorities. The plaintiff asserted that as there was shortage of coal, which was a controlled commodity, it was justified and entitled to demand delivery after weighment whereas the railway authorities insisted on delivery of the consignment only against a clear receipt to which the plain-tiff did not agree. It was further asserted that the Railway was negligent and had committed misconduct in transporting the wagon which resulted in loss of a part of the consignment. The plaintiff claimed a decree for Rs. 1289.86. which included the value of the coal and other charges along with profit and interest.

The defendant pleaded that the wagon reached the destination in good condition and there was no shortage and that the plaintiff wrongfully demanded delivery after re-weighment to which it was not entitled. It was also pleaded that even if there was shortage the plaintiff had no right to refuse delivery and it could prefer its claim after taking delivery of the goods. It was further pleaded that since the plaintiff did not take delivery of the consignment, it was unloaded and subsequently sold after due notice to the plaintiff. It was denied that there was any misconduct or negligence on the part of the Railway Administration. The defendant claimed that the plaintiff was liable to pay Rs. 2589.90 towards freight, demurrage, wharfage, handling and unloading charges. After adjusting Rs. 1300/-recovered from the sale of coal the defendant made a counter claim for a sum of Rs. 1289.90 against the plaintiff.

2. The trial court held that there was tampering with the railway wagon due to negligence and misconduct of the employees of the railway. The Court negatived the plaintiff's claim that it was entitled to claim delivery after reweighment. It was further held that loss was caused to the plaintiff on account of its wrongful refusal to take delivery. The defendant was also held not entitled to any amount as it was a case of contributory negligence. On these findings the suit was dismissed. Aggrieved by the decree of the trial court both the parties preferred appeals. The learned Civil Judge affirmed the finding of the trialcourt that there was misconduct and negligence on the part of the Railway employees due to which a part of the consignment was lost. He also held that refusal to take delivery after re-weighment was not justified and the remedy of the plaintiff was to take delivery and then prefer its claim for shortage.

As regards the counter claim of the Railway the court held that the defendant Railway was entitled to deduct Rs. 768.80 as demurrage, Rs. 120.00 as wharfage charges and Rs. 14.00 as handling charges i.e. a total sum of Rs. 902.80. After adjusting the amount realised from the sale of coal the defendant was held liable to pay a sum of Rs. 387.06 with one third costs of both the courts. The defendant submitted to the decree. The plaintiff has come up in appeal to this Court. A learned single Judge of this Court while hearing the second appeal felt some doubt about the correct legal principle relating to the rights of a consignor or consignee to claim re-weighment of the consignment before taking delivery where it was indicated that there had been pilferage or loss of a part of the consignment in transit and consequently recommended that the appeal be listed before a larger Bench for decision.

3. There is no dispute that the consignment was booked at owner's risk. It is no longer in dispute that as a result of misconduct and negligence on the part of the Railway employees a part of the consignment was lost. The only question that arises for consideration is whether the plaintiff was justified in refusing to take delivery unless the consignment was re-weighed. Rule 118 of the General rules for Acceptance, Carriage and Delivery of Goods contained in Goods tariff provides that Railways do not undertake to weigh consignments at destination stations as a matter of course. Such weighments at destination stations can only be considered in exceptional cases when the condition of the consignment or package warrants this. Relying on this rule it was contended that the condition of the consignment warranted re-weighment of the goods at the destination station and the plaintiff was justified in insisting that before taking delivery the goods must be weighed and as the Rail-way authorities illegally refused to re-weigh the consignment, it was justified in refusing to take delivery and the defendant was liable to pay the damages suffered by the plaintiff. Chapter III ofthe Goods Tariff provides for rates and conditions for the carriage of coal. Rule 302 provides that 'coal, coal shale, coke, lignite and patent fuel, when moving in wagon-loads at U.K., will be charged under a special scale of rates which is shown in Rule 303. Except where otherwise stated, the rules and conditions of carriage will be the same as those notified for the general goods.' Sub-rule (7) provides that coal booked at Owner's Risk will not be re-weighed. Rule 302 further provides that to arrive at the freight at Railway Risk the total freight at Owner's Risk rate should be increased by 20 per cent. It is thus obvious that when coal in wagon-loads is booked at owner's risk a lower rate of freight is chargeable. The plaintiff opted for the lower freight and contracted that the goods be carried at its own risk. Under the terms applicable to such a case it was not open to the plaintiff to refuse to take delivery unless the consignment was first re-weighed at the destination station. These rules have been apparently framed in exercise of the power under Section 54 of the Indian Railways Act which empowers a Railway Administration to impose conditions not inconsistent with this Act or with any general rule thereunder, with respect to the receiving forwarding or delivering of any animals or goods.

4. Learned counsel for the plaintiff appellant contended that in spite of the fact that the consignment had been booked at Owner's Risk it had a right to demand re-weighment before taking delivery of the consignment in view of clear indications that there had been pilferage and a part of the consignment had been lost in transit. Reliance was placed on Bhullan Mal Asa Ram v. Secy. of State : AIR1929All960 which approved the earlier decision of a learned single Judge of this Court in the Rohilkhand and Kumaun Rly. v. Ismail Khan 13 All LJ 417 : (AIR 1915 All 155 (2)). In Bhullan Mal Asa Ram's case (supra) there was no risk note and the consignment travelled at Railway risk. The Bench in the earlier part of the judgment observed that the factor that there was no risk note was not of importance in deciding the general question as to whether the consignee had a right to demand re-weighment before taking delivery. Reference was made to Rule 7,3 of the 'East Indian Railway TrafficCode, part 2, Goods Traffic' which provided that a proportion of not less than20 per cent of all goods should be reweigh-ed at the destination.

It appears that the Traffic Code also provided that packages showing signs of pilferage or from any cause whatever suspected of underweight, must in all cases be separately reweighed in the presence of the Station Master, in addition to those cases provided for in the traffic rules. The learned Judges felt that the spirit of rules intended that under request of a consignee re-weighment should be made. However, in the penultimate paragraph of the judgment the learned Judges took care to observe that we lay down this proposition in a case in which there is no risk-note. As risk notes vary in their terms, we do not apply the proposition generally to cases of risk note. In view of this observation and the further fact that the decision of the case was based on the traffic rules then in force this case cannot be treated as an authority for the proposition that the consignee has a right to demand re-weighment before taking delivery in every case irrespective of the question where the consignment travelled at the Railway risk or at the owner's risk.

5. Reliance was also placed by the appellant on Harakchand Bhatey v. G. I. P. Rly. Co. (AIR 1927 Nag 77). In this case goods were consigned under risk note in form A. Following the decision in Rohilkhand and Kumaun Rly. (supra) it was held that the defendant Company was liable to the plaintiff in damages for not giving him the necessary facilities to re-weigh the goods. We feel that the principle in this case has been rather widely stated. The right of the consignor or consignee regarding re-weighment of goods at the destination has to be determined on the terms under which the consignment was booked.

6. We may now deal with certain cases mentioned by the learned single Judge in his referring order In Jewala Pershad and Co. v. G. I. P. Rly., ( (1913) 11 All LJ 772) a consignment of wine was sent from Bombay to Allahabad which were packed in boxes. The plaintiff, when he went to take delivery of the goods, found that there was a difference between the weight of consignment as entered in the railway receipt and the actual weight found on re-weighment. He demanded that before he took delivery of the consignment the officer in charge of the goods station should open the boxes and examine the consignments and should give him an open delivery. The Railway Company refused to do so and the plaintiff in his turn refused to take delivery of the goods. In this case the consignment was carried at the railway risk. This Court held that the Railway was not bound to open the consignment and examine it before delivery and it was not a wrongful act on the part of the Bail-way Company to refuse to give delivery in the way required by the plaintiff and they were not liable to him for any damages. This case is distinguishable on facts as the consignment was actually re-weighed at the destination and what the plaintiff insisted was for open delivery to which he was held not entitled.

The principle laid down in this case has been followed in Governor-General in Council v. Firm Badri Das Gauri Dutt : AIR1951All702 , Badri Das v. Union of India : AIR1962All483 and Jagan Nath Prasad Radhey Lal v. Union of 'India (Second Appeal No. 3437 of 1956, decided on 3-9-1973 (All)) which also were cases relating to claim for open delivery. In Niranjan Lal v. Union of India : AIR1973All303 the principal question for consideration was whether the plaintiff consignor was entitled to claim pre-delivery assessment of damage. It was held that there was no provision in the Goods Tariff No. 31 or in the Railways Act entitling the consignee to have the damages assessed before taking delivery of the consignment. A Railway Administration is not bound to give open delivery on demand of the consignee nor has a consignee a right to refuse to take delivery of the consignment unless the damages were first assessed by the railway authorities. The rule laid down in this case is also of not any assistance in deciding the controversy in the present case.

7. A Division Bench of the Madhya Pradesh High Court in Managing Agents (Martin and Co.) v. Deokinandan : AIR1959MP276 held that a consignee has no right to insist that the railway officer giving delivery should weigh the goods consigned and make an endorsement as regards the shortage and to refuse to take delivery if the railway officer refuses so to do. The consignee should take delivery of the consignment in the condition in which it is found after giving notice to the delivering officer as to its condition and then sue the Railway Administration for damages. This case followed the decision in Jusaf and Ismail Co. v. Governor-General in Council (AIR 1948 Nag 65). The same view has been taken in Dehri Rohtas Light Rly. Co. Ltd. v. East Keshalpur Colliery : AIR1963Pat46 .

8. On a consideration of the principles laid down in the cases referred to above and the Tariff Rules framed by the Railway Administration we feel that it is not open to a consignor or consignee to refuse to take delivery and insist on re-weighment or open delivery even when it is indicated that there has been pilferage or a part of the consignment has been lost or damaged in transit. The right to claim open delivery or re-weighment before delivery will primarily be governed by the terms and conditions under which the consignment was booked. It would of course be open to the consignor or consignee to accept delivery and claim damages in case he has suffered damages as a result of the negligence and misconduct of the Railway administration. In the present case since the goods were booked at owner's risk the plaintiff was not justified in insisting on delivery after re-weighment and the Railway Administration legitimately refused to accept the demand of the plaintiff. The view taken by the court below is legally sound and must be affirmed.

9. The appeal has no merit and is dismissed. Parties shall bear their own costs.